Speaking by phone to Proposition 8 opponents Monday night, Attorney General Jerry Brown offered a rather blunt assessment of his office’s performance during the recent Supreme Court hearing on the gay-marriage ban.
“Our presentation wasn’t all that I wanted,” Brown said in a teleconference arranged by Courage Campaign, a left-leaning online political network. “I must say I had thought about making the argument myself. But the tradition is that the lawyers in the government section do this and they’re the ones — boy, they worked hard. They really practiced.”
Senior Assistant Attorney General Christopher Krueger, as you might remember, had a tough time selling the justices on the argument that Prop 8 wasn’t a constitutional revision but rather an improper infringement of an inalienable right.
“Boy, when I saw the judges there, they certainly were on the attack, and our man didn’t fight back as well as I would want,” Brown told the teleconference listeners.
JB, not pulling punches, post-jump:
Brown said the lawyers in his office discussed and debated the proper arguments to make against Proposition 8 and decided that the Prop-8-is-an-illegal-constitutional-revision tack wouldn’t fly with the court. The argument wouldn’t survive the precedent set in 1972 when the court ruled the death penalty was cruel and unusual punishment but later let stand a voter-approved initiative approving capital punishment, Brown said.
“My office and my lawyers felt, let’s go to the heart of the matter, let’s set the case at its most fundamental level and that’s the way we presented it,” he said.
The attorney general added that he hadn’t “given up on the court yet.”
Another interesting nugget from the conversation: Brown said he’d investigate any church that improperly participated in the Prop 8 campaign. The Fair Political Practices Commission is reviewing at least two complaints that the Church of Jesus Christ of Latter-Day Saints failed to comply with state campaign disclosure laws, a charge that the church emphatically denies.
(Bonus fun: You can listen to the attorney general’s teleconference in its entirety.)
— Cheryl Miller